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AGENTS OF A REPORT ON THE INCIDENCE OF SUBPOENAS SERVED ON THE NEWS MEDIA IN 2001 The Reporters Committee for Freedom of the Press AGENTS OF A REPORT ON THE INCIDENCE OF SUBPOENAS SERVED ON THE NEWS MEDIA IN 2001 A project of The Reporters Committee for Freedom of the Press Project Editor and Editor in Chief Lucy A. Dalglish Editor Gregg P. Leslie Compiled and reported by Wendy Tannenbaum Funding for “Agents of Discovery” provided by the John S. and James L. Knight Foundation. The Knight Foundation promotes excellence in journalism worldwide and invests in the vitality of 26 U.S. communities. © 2003 The Reporters Committee for Freedom of the Press. All rights reserved. No part of this booklet may be reproduced in any form or by any means without the prior, written permission of the publisher. Additional copies of this report may be obtained from: The Reporters Committee for Freedom of the Press 1815N. Fort Myer Drive, Suite 900 Arlington, Virginia 22209 (703) 807-2100 e-mail: [email protected] Foreword We at the Reporters Committee for Freedom of democratic society, or any public interest in ensuring the Press knew if we waited long enough for a horror that the media remain impartial and disinterested story to make the case for a strong reporter’s privi- both in perception and reality. On the other hand, lege, we’d get a doozy. Just in time for the final survey respondents report that they were successful installment of Agents of Discovery, a federal judge in more than 75 percent of the time in 2001 when they Texas threw a young freelance book author in jail for sought to get a subpoena quashed. Newsrooms a record-breaking 168 days. Vanessa Leggett refused managers who were successful in getting the subpoe- to identify confidential sources for a book she is nas quashed strongly recommend taking legal action writing about a notorious Houston murder and paid whenever a subpoena is served. the price by serving time in 2001 in a federal prison There has been some progress. Survey responses for contempt of court. Details of her remarkable case show, for example, the average number of subpoenas are featured in this report. received by all respondents was 2.6 in 2001. This The Reporters Committee for Freedom of the represents a decline from the 1991 survey, which Press launched its first survey documenting the found that respondents received an average of 3.0 incidence of subpoenas served on the news media in supoenas. The average number of subpoenas per 1990. We collected data from print and broadcast respondent in 1997 was 4.6. news operations throughout the United States, hoping Broadcasters continued to receive more subpoenas to demonstrate that journalists are, indeed, “different- than newspapers in 2001. The average number of ly situated” from other targets of discovery, and that subpoenas served on television news stations was 7.7. the negative impact of subpoenas on newsgathering The average number served on newspapers was 0.7. and dissemination was substantial. The 2003 report Lawyers for television journalists say that many (compiling data from subpoenas in 2001) is our sixth. litigators incorrectly believe that videotaped evidence, We produced our first five reports in 1991, 1993, or evidence presented by a famous local television 1995, 1999 and 2001. These Agents of Discovery reporter, is more persuasive to a jury than more reports frequently were introduced into evidence or “ordinary” evidence. appended to legal briefs and motions seeking to quash We hope that this reports will help to educate and subpoenas. They persuaded legislators in several states inform judges of the very real consequences and costs to enact or enhance journalists’ shield laws. And they of permitting subpoenas to be served indiscriminately outlined practical solutions for newsroom executives on the news media. overwhelmed by expensive, time-consuming subpoe- The Reporters Committee is grateful to the John nas based on the experiences of their colleagues. S. and James L. Knight Foundation for underwriting Despite efforts to create or improve shield laws in this national survey in 1997, 1999 and 2001. several states in the late 1990s, the reporter’s privilege This report was produced through the hard work is still on shaky ground in many states. Several of several members of the Reporters Committee staff. disturbing trends have surfaced. For example, media We acknowledge especially Wendy Tannenbaum, outlets are broadcasting and printing footage, outtakes 2002-2003 legal fellow, who drafted the report and and notes (usually on the Internet) so that when the compiled most of the data. Legal Defense Director material is subpoenaed they can claim they are Gregg Leslie supervised the data collection and handing over material that has already been pub- reporting and produced the report. Victor Gaberman, lished. In some states, courts have issued “separation Maria Gowen and Lois Lloyd, with special help from orders,” which prevent journalists who have covered the entire Reporters Committee staff, provided court stories from covering the actual trial because administrative support. they may be called as witnesses. And, perhaps most We also express our appreciation to the journalists disturbing of all, some television newsrooms are and lawyers whose assistance made Agents of Discovery discarding outtakes within 24 hours so there is possible. nothing available when the process server shows up at the reception desk. Lucy A. Dalglish, Esq. Many judges believe a subpoena served on a news Executive Director organization is no different from that served on any The Reporters Committee other business. In opinion after opinion, judges fail to for Freedom of the Press acknowledge any special role for the media in a May 2003 AGENTS OF DISCOVERY 1 AGENTS OF A report on the incidence of subpoenas served on the news media in 2001 In 2001, freelance book the disadvantage of a jour- author Vanessa Leggett nalist appearing to be an broke a record she never investigative arm of the aspired to challenge. Serv- judicial system or a re- ing what would turn out search tool of government to be a 168-day prison or of a private party; the term, she became the disincentive to compile and longest-jailed journalist in preserve nonbroadcast ma- U.S. history held for re- terial; and the burden on fusing to disclose a confi- journalists’ time and re- dential source. sources in responding to Leggett chose to go to subpoenas.”1 prison rather than com- When it rejected Leg- ply with a subpoena from gett’s appeal in August a federal grand jury. She 2001, the appellate court had claimed that a report- issued an opinion that er’s privilege protected made no mention of the her from having to dis- burden subpoenas impose close her confidential on news organizations.2 sources for a book she was AP PHOTO Other courts have been writing about a murder At 168 days, Vanessa Leggett’s time in jail is the most served by similarly unwilling to ac- case in Texas. After a U.S. any journalist for refusing to disclose confidential information. knowledge the enormity of District Court judge and an appeals court Yet the practice of subpoenaing jour- harm that results from media subpoe- ordered her to disclose her interviews or nalists creates problems besides the threat nas. In 1998, a panel of the U.S. Court of go to jail, Leggett stood her ground and of jail. Compliance with subpoenas en- Appeals in New York City (2nd Cir.) turned herself in to prison officials. dangers the freedom of the press. Each rejected assertions that subpoenaing the “I just feel like I’m doing what I have time the press is forced to provide evi- media has deleterious effects on the news- to do to protect my First Amendment dence to prosecutors, police, criminal gathering process because those asser- right to freedom of the press,” Leggett defendants or civil litigants, the media’s tions were supported by “no persuasive told an Associated Press reporter on her neutral status is compromised, and the argument, much less any appealing evi- way to jail. “I feel like what they are free flow of information to the public is dence.”3 The U.S. Supreme Court’s 1972 doing is wrong.” chilled. landmark opinion in the case Branzburg After her release almost six months Moreover, as many managing editors v. Hayes noted that “[e]stimates of the later, Leggett said she would be more and news archivists will attest, subpoe- inhibiting effect of such subpoenas . than willing to go back to jail if she were nas to news organizations are burden- are widely divergent and to a great ex- subpoenaed again. some and time consuming, often eating tent speculative.”4 “If that’s what it takes, that’s what it up valuable resources that should be The Reporters Committee for Free- takes. This is not so much about me. It’s used to gather and disseminate news. dom of the Press, with the assistance of about the public’s right to a free and In a friend-of-the-court brief sub- news outlets around the country, has independent press.” mitted to the U.S. Court of Appeals in taken on the task of documenting the Subpoenas to journalists by govern- New Orleans (5th Cir.) in Leggett’s case, burden these subpoenas to satisfy the ment and other litigants rarely result in The Reporters Committee for Freedom demand for empirical evidence from jail time. Vanessa Leggett’s ordeal made of the Press and other media organiza- judges faced with subpoena challenges. national news for being the first time in tions argued that news organizations Taken together with the previous 30 years that a journalist had spend any should be free from “the threat of ad- editions of Agents of Discovery — which significant amount of time behind bars ministrative and judicial intrusion into surveyed the news media on the same for refusing to comply with a subpoena.